PFAS Litigation Updates



The world of PFAS litigation is quickly evolving. As regulatory scrutiny of these compounds increases, so, too, will the body of associated case law. From class actions to multidistrict litigation, this section will regularly highlight developments in PFAS-related litigation.

Content in this section does not reflect the opinion of Alston & Bird or its attorneys.

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New Hampshire Supreme Court Denies Plaintiffs’ Attempt to Recover Medical Monitoring Costs

The New Hampshire Supreme Court has rejected claims by plaintiffs that exposure to PFAS and the possibility of increased health risks require that a plastics manufacturer using the chemicals pay for medical monitoring of local residents, citing the state legislature’s failure to enact such a requirement.

The ruling, which was prompted by a federal district court’s request, could deal a blow to plaintiffs in other lawsuits seeking medical monitoring, among other measures, as a remedy for exposure to PFAS.

The New Hampshire Supreme Court said the question of whether the possibility of health risks is a cause of action for remedy was a matter best resolved by lawmakers, who had failed to enact such a requirement as recently as several years ago.

March 24, 2023 | Brown v. Saint-Gobain Performance Plastics Corp., No. 1:16-cv-00242 (D.N.H. Mar. 24, 2023).

Prospective Class Action Alleges Butter Sticks Contain PFAS

A purchaser of the Irish butter brand Kerrygold has filed a prospective class action in New York, alleging its branding of the butter as “pure Irish butter” falsely leads consumers to believe the products do not contain PFAS.

February 14, 2023 | Winans v. Ornua Foods North America Inc., No. 2:23-cv-01198 (E.D.N.Y. Feb. 14, 2023).

Prospective Class Action Alleges Pomegranate Juice Contains PFAS

A prospective class action was filed on behalf of customers of Pom Wonderful 100% Pomegranate Juice, alleging the advertising of the beverage as “all natural” misleads customers to believe the products do not contain PFAS. The complaint alleges the customers would not have purchased the product if they had known it contained PFAS or would have purchased it only for a lower price.

February 14, 2023 | Hernandez v. The Wonderful Company LLC, No. 1:23-cv-01242 (S.D.N.Y. Feb. 14, 2023).

Sports Drink Company Sued for Use of PFAS

Customers who purchased BioSteel Sports Nutrition’s raspberry sports drink filed a lawsuit against the company, alleging third-party testing of the sports drink indicated that PFAS are present in the drinks and BioSteel knew or should have known. The lawsuit alleges the company made false and deceptive claims by marketing the drinks as “eco-friendly” and “good for you and the environment” and using well-known professional athletes in its campaign.

January 27, 2023 | Bedson v. BioSteel Sports Nutrition Inc., No. 1:23-cv-00620 (E.D.N.Y. Jan. 27, 2023).

PFAS Regulation Likely to Spur Increased PFAS Litigation

Legal analysts forecast that PFAS-related lawsuits will continue to rise in 2023. The analysts assert that the EPA’s efforts to list PFOA and PFOS as hazardous substances under CERCLA, which will require facilities to report releases of PFAS and authorize the EPA to enforce cleanup efforts, and growing public awareness about PFAS and its health effects are responsible for this likely increase. Several plaintiffs in various suit involving PFAS have already stated that once the EPA finalizes its rule designating PFAS as a hazardous substance they will seek leave to amend their complaints to assert CERCLA cost-recovery claims. The EPA seeks to finalize this PFAS-designation rule before the end of 2023.

January 12, 2023 | Notice of Proposed Rulemaking: Designating PFOA and PFOS as CERCLA Hazardous Substances, U.S. EPA